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Motion Denied But Fight for Weber County Investigation Records Continues

(Image courtesy Blogtrepreneur, Wikimedia Commons https://commons.wikimedia.org/wiki/File:Legal_Gavel_(27571702173).jpg)

The following was written by Utah Investigative Journalism Project board member Cathy McKitrick.

OGDEN — Timely access to government records is fundamental to journalists doing their jobs with any precision and accuracy. Otherwise, news reports can easily deteriorate into he-said, she-said mode, leaving the public to speculate and possibly draw misleading conclusions.

That is one reason I chose to intervene in the Kerry Gibson v. The City of Ogden and Ogden City Records Review Board. Also, I am very grateful to my attorneys at Parr Brown for taking this case pro bono. Without them, I could not proceed.

At issue are the contents and findings of the roughly six-months long investigation into whether Gibson, in his role as Weber County Commissioner, had misused county funds and resources for private gain.

The final paragraph of a letter from Davis County Attorney Troy Rawlings summarized why no criminal charges would be brought against Gibson: “The Davis County Attorney’s Office completed the investigation and review on May 17, 2018. After careful review of all the evidence collected, it is our determination that there is insufficient evidence to prove beyond a reasonable doubt that Commissioner Kerry Gibson committed the offense of Misusing Public Money pursuant to Utah Code Ann. 76-8-402.”

A month before that official letter from Rawlings, Gibson held a press conference at the Weber County Republican Convention to announce that Rawlings had cleared him, and he’d done nothing wrong.

After Rawlings’ May 2018 announcement, the investigation ended, and I filed a government records request to obtain its contents and findings. The Ogden City Police Department conducted much of the investigation, so that request went through Ogden City, which denied access twice. But the Ogden Records Review Board — the final stop at Ogden City — reversed those denials in September 2018, granting access with the redacting of certain portions to protect personal identifying information of complainants and witnesses along with any unusual investigative methods that might have been employed.

Usually court appeals in these cases come from requestors who have been denied access. But here, Gibson sued to block access that had been granted, claiming he had been cleared of all wrongdoing and the probe’s contents would further embarrass him and his family.

Today, Judge Noel S. Hyde ruled against my attorneys’ motion to dismiss the case.

Gibson’s attorney Peter Stirba argued that his client’s constitutional right to privacy gave him standing to contest release of the records, and that this case was about the balancing of personal privacy and the public’s right to know.

But Jeremy Brodis, an attorney with Parr Brown, countered that Gibson lacked statutorial standing to file his suit in Ogden’s District Court, that the plain language of Utah’s Government Records Access and Management Act, or GRAMA, limits that right to requestors who have been denied access or to government entities involved in the process.

After a half-hour recess, Hyde returned with his ruling to deny the motion to dismiss, siding with Gibson that his constitutional right to privacy gave him standing to sue in District Court to keep the records under wraps, that the language of GRAMA language does not preclude someone from appealing on behalf of their own privacy interests. He also opined that GRAMA’s language is unclear and ambiguous.

At any rate, Judge Hyde’s ruling today has the power to set precedent for future government record fights.

In this case, the denial of the motion to dismiss could be challenged at the appellate court level, or the case could proceed in Ogden’s 2nd District Court and be argued on its merits.

After the hearing, David Reymann of Parr Brown said they would weigh their options going forward.

“It’s incredibly dangerous that the court would recognize that someone who is not a party to a records decision can file in court in a way the statute doesn’t authorize and prevent the public from getting otherwise public records,” Reymann said. “That’s not the way it’s supposed to work.”

For several years, Cathy McKitrick reported for The Salt Lake Tribune and the Standard-Examiner before retiring in April 2018. She now works as a freelance journalist and also serves as a board member for the Utah Investigative Journalism Project.

5 Comments
  1. It was a fascinating hearing, but by my reckoning that recess lasted a full hour, while Judge Hyde presumably racked his brain to come up with a statutory rationale for the way he wanted to rule. It seemed especially unfair that his reasoning departed almost completely from the argument that Stirba had made on behalf of Gibson, and that Brodis had no opportunity to respond to Hyde’s novel argument.

    One possible consequence of Hyde’s argument, it seems to me, is that if McKitrick prevails, she (or in this case her attorneys) should be able to collect attorney’s fees from Gibson. The statute says only the governmental entity can appeal to district court in opposition to disclosure, and only the governmental entity can be held liable for the requester’s attorney’s fees if the requester prevails. So if Judge Hyde’s convoluted reasoning extends standing to a third party who opposes disclosure, then I should think the same convoluted reasoning should extend liability for attorney’s fees to that third party.

  2. Excellent summary Cathy. We will stay tuned to make sure we follow the “next action”. Deb
    Oh, I will be sending some support to your organization. It is so needed.

  3. It looks like there is a double standard on how OPD handles GRAMA requests. I’m in the middle of a case involving a Weber State faculty member and WSU obtained the entire un-redacted OPD file (including supplemental) in the criminal investigation they conducted for that WSU faculty member. In violation to GRAMA laws, WSU shared that un-redacted report with their faculty member. I tried complaining to OPD and the Attorney General office and they ignored me, even though I provided OPD with documentation. The AG said I could bring action against WSU for that “one-time violation.” It should be the government’s duty to protect individual’s civil rights and not put it on citizens to have to hire attorneys to protect them from government misconduct.

    In the case of Gibson, he gave up his privacy, especially when it comes to his office dealings when he became a public servant.

  4. Thank you for your important work, Cathy. With much of the public’s attention being drawn to injustices on the national scale, local issues can largely go unnoticed. I appreciate you bringing this to our attention. Corruption in any level of government is not acceptable. And it is the public’s right to know how our city and county leaders are acting in their official duties.

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